14 Colo. App. 84 | Colo. Ct. App. | 1899
I have stated this controversy with extreme particularity
The appellees question the propriety of the proceeding by mandamus to enforce the appellant’s rights and insist the only remedy is by bill in equity or by certiorari. Much learning and ingenuity is exhibited in their argument, and it must be conceded very large support for the contention is found in the adjudications of sister states. The whole matter, however, was made the subject of very elaborate discussion and consideration by the supreme court, and the right of parties to proceed against the land board by way of mandamus under certain circumstances analogous though not entirely similar to the present fully sustained in an exhaustive opinion. The circumstances under which this proceeding might be adopted for the purpose of effectuating asserted rights were elaborately considered and fully determined. It was adjudicated that this proceeding might be initiated as against this particular board, to wit, the state land board, and wherever their discretion had already been exercised and there was nothing left to be done but to execute an instrument, this was an act ministerial in its character, the writ could issue, and thereon judgment might be rendered compelling them to perform, a case being otherwise made out by the applicant. Greenwood Cemetery Co. v. Routt et al., 17 Colo. 156. This decision we substantially followed, announcing the same principle in Rhodes v. The Board of Public Works, 10 Colo. App. 99; Bradbury v. Alden, 13 Colo. App. 208.
It would be folly to attempt, even if we might succeed, to fortify what was so well and so accurately stated in those
As preliminary to this question it may be well to dispose of a suggestion made by counsel on the argument, that the board had executed another lease to The Victor Coal & Coke Company which is outstanding, and that therefore they should not be compelled to execute another paper which would be antagonistic and perhaps involve the board and third parties who are not before the court with respect to their rights. We do not believe the position to be well taken. Counsel insist and it is undoubtedly true, and has been many times held that where rights of third parties are involved, mandamus will not ordinarily lie, but parties must proceed by bill in equity, bring those parties in, and in the suit thus initiated have their rights litigated and determined. We are quite of the opinion this case is not at all similar or in its facts analogous to those wherein this principle has been enunciated. As we view it, if we ultimately conclude what the land board did amounted to a contract between them and the fuel and iron company, the subsequent lease executed to The Victor Coal & Coke Company, was wholly invalid, they acquired no rights thereby and they are not prejudiced by these proceedings. Again, it is equally true it is not for the land board, which counsel insist is the only party represented, to contend that The Victor Coal & Coke Company are not before the court, to say that they have executed another lease, nor to
A further answer to the contention that a bill in equity is the only proper remedy is to my mind very strongly illustrated by the situation of the parties under existing conditions. It is undoubtedly true The Colorado Fuel & Iron Company may not file a bill against The Victor Coal & Coke Company without averring a lease and rights thereby acquired. It is a matter of grave question in my mind whether setting up the facts as they appear in the statement, a bill could be maintained against The Victor Coal & Coke Company for the cancellation of their lease, or to compel its transfer. The latter remedy of course is not at all effectual or consistent with the rights of The Colorado Fuel & Iron Company. This company is not insisting on an assignment of the lease executed to The Victor Coal & Coke Company which is totally different in its conditions from those expressed in the contract of the state land board. The assignment of the lease would neither be an adequate nor an effectual remedy, nor would it give the fuel and iron company the rights to which they are entitled, if they are entitled to any. It is equally evident they could commence no action at law to recover possession. It requires leasehold rights evidenced by an instrument executed by the proper authorities to entitle them to maintain law actions as well as bills in equity to perfect their claims and establish their rights, and we are quite unable to see how a bill in equity could be framed whereon a decree could be rendered which would give the fuel and iron company that to which it is entitled. Whatever might be the right or the rule under other circum
We now come to this inquiry, the first branch of it we have already determined, and to our satisfaction at least have demonstrated that the fuel and iron company have no other remedy than the one by mandamus to enforce the right upon which they insist. Whether they had or had not this right, depends on the determination of two propositions: the one, the construction of the statute, the determination of its limitations and conditions; the second must be resolved from a consideration of the acts of the parties. We come to the first proposition which respects the proper construction of the statute. The theory of the trial court, as well as of appellees’ counsel, is that the act of 1895, which is quoted in the statement, contains a mandatory limitation on- the power of the board, and without the concurrence of the acts therein specified the board may not renew a lease. According to the terms of the original act of 1887, the land board was given full power to lease any portion of the lands of the state at a specified rental on a valuation, to be fixed, subject however, to this provision and this condition: if the lands contained coal, and with this only are we concerned, there is no limitation on the power of the board with reference to the terms of the lease or the time for which the demise may run. It is insisted, however, that the subsequent section found in the act of 1895 and fully quoted is applicable to coal leases as well as to leases of other lands. We do not so conclude with respect to any provision which affects the present controversy. We do not intend to construe the entire section or to determine its whole force and extent. We shall only refer
This difficulty then is obviated and we now come to the next provision, which is substantially that when any lease expires by limitation the holder may renew at any time within the thirty days next preceding, if he notifies the register of his desire. If the lessee and the board agree as to the valuation a new lease may be issued bearing even date with the expiration of the old one and upon like conditions. The position taken by the appellees and confirmed by the lower court is that this is a mandatory limitation on the power of the state land board with reference to leasing coal lands. It is quite impossible for us to follow counsel or the court below and accept the argument which leads to this conclusion. If the section which contains a direct limitation as to time has no relation whatever to the powers of the land board with reference to leasing coal lands, we are quite unable to see why this provision respecting the renewal of leases may likewise be so far extended as to be regarded as a mandatory limitation on their powers. It is one of the cardinal rules of statutory construction that the object and purpose of a pro
We now come to the second proposition which is, what is the legal effect of what the state land board did, according to the facts disclosed by the evidence, and exhibited by its record ? The Colorado Fuel & Iron Company were lessees of section 36 and had been for some years in possession of it and prosecuted their work with reference to its ultimate
Most lawyers would concede that as between private individuals the result would be a lease between the parties enforcible by proper action either at law .or in equity to protect the lessees’ rights. The only difference between this case and one between private individuals is that in all probability, though we do not directly decide it, a bill would not He against the state land board, which is a part of the executive department of this government. We can see many difficulties in the way of maintaining an action at law against the state land board; they could not be compelled to respond in damages for failure to carry out their contract, and it is certainly a doubtful question as to whether a bill in equity for specific performance would He as against them. Mandamus will He to compel the execution of this lease as the supreme court has directly decided. It is the only adequate and specific means of compelling performance, and when once the lease is executed, which is a ministerial act, whatever rights the fuel and iron company may have will be adequately protected, and they can bring such action at law or suit in equity based thereon as they are entitled to maintain. We thus reach the conclusion that what was done amounted to
There are very grave doubts in our minds, though possibly it may not be essential to the decision of the case, whether it was within the power of the land board to rescind the action of their predecessor and make a new contract which would be of any value or validity. Similar action was attempted by a subsequent secretary of the interior under a second administration, acting under an act of congress, and the supreme court of the United States in a well considered case, held the subsequent secretary could not either interfere with, modify, reverse or set aside the action of his predecessor when rights of third parties had intervened and become vested. Noble v. R. R. Co., 147 U. S. 165.
If this be the law with reference to the officers of the general government, we see no reason why it should not be applicable to the land board of the state under successive administrations. In this case, under a former governor and former land board, a new lease was attempted to be made, or a contract made between the board and the fuel and iron company. When they paid their money or gave check which was its equivalent as it was accepted by the proper officer, their rights became vested and they had a right to insist thereafter that a new lease should be executed in accordance with the action then taken. We are quite unable to see how it was within the power of a subsequent administration and a new board to rescind that action, deprive a party of rights which had already vested and arbitrarily in the exercise of their discretion, determine that what their predecessors had done, was neither right, lawful nor expedient.
It may be wholly unnecessary to refer to the motion with respect to the striking out of the opinion of the lower court. As we conceive, the motion would never have been made but for.the desire of counsel to rely on the general finding incorporated into the judgment, to the effect that the court
We now refer to the cross assignments of error. As we look at it, the propriety and character of the practice is well settled. Under the statute, parties have a right to file cross assignments of error and thereon obtain the opinion of the appellate court that they may obtain such ruling as shall be a guide and a benefit to the lower court, to them, and to their clients in the litigation which may be continued on a reversal of the case.
This brings us to the consideration of what seems to be the only question raised by the cross assignment which is at all important. This is the matter of fraud which is alleged as a reason or a basis for the subsequent action taken by the state land board. We do not believe that there is either in the answer or in the evidence any proof whereon a claim of fraud can be predicated or which will constitute a defense to this application. The only particular fraud averted to is found in the affidavit of Mr. Kebler which states his belief that if there is any workable coal in the section, it is so located that it is not practicable to work it from the surface at any point on the section, but only from adjacent ground. This is not
We do not regard the evidence which was offered to the proposition that the representation influenced the action taken by the board was sufficient either in terms, form, substance or character to justify any judgment on that question. What was stated in the affidavit was not stated in such form that the board had a right to rely on it, nor did the evidence which was introduced tend to show that the board did rely upon that statement as a substantive fact upon which to predicate their action. The evidence of the members of the board was not satisfactory in that direction, nor does it serve to convince us that the board relied on the affidavit at the time they made the lease or made the order which was found in their record. Taking it altogether as a matter of law, we should be compelled to hold that there was no evidence that the board relied on that affidavit in such a way as to conclude
The only other question which it seems to us necessary to consider is with respect to the legality of the meeting and the service of notice upon the various members of the board. We are ready to admit there was a decided conflict of testimony as between the register of the state land board and Mrs. Peavey and her assistant. We do not feel called on to decide this question and our reference to it is made more out of deference to counsel than because of a necessity for its decision. The opinion of the lower court is direct to the proposition, and it states its conclusion from the evidence that the meeting of December 30, was valid, and that the burden was on the defendants to show its invalidity. The court held the presumption to be, that the officer did his duty, and states that the evidence respecting the notice was contradictory. He concludes that the proof presented by the defendant which was unquestioned was insufficient to overcome the evidence of the register and the presumption in favor of the regularity of the meeting. We agree with him upon the record. The conclusions of the trial court on these several matters are wholly supported, entirely right, and with them we are in full accord.
So far as we can see we have discussed and disposed of all matters essential to the determination of the issue. The opinion is greatly extended, and we perhaps decide some questions which are not absolutely essential to the case, but it has been so well presented, so thoroughly and ably argued by counsel in their briefs and at the bar, that we felt compelled to unduly protract this opinion in order to dispose of the various questions to which they seem to attach such great importance. The controversy is one involving large interests. Much money has been expended by the contending parties, and while theoretically The Victor Coal & Coke Company «are not before the court, the attorney’s signature attached to the brief and the proof offered that they have expended a
Reversed.